Citation Nr: 0804714
Decision Date: 02/08/08 Archive Date: 02/13/08
DOCKET NO. 05-09 370 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Newark, New
Jersey
THE ISSUE
Entitlement to an initial compensable evaluation for
residuals of a laceration of the right fourth finger.
REPRESENTATION
Appellant represented by: New Jersey Department of
Military and Veterans' Affairs
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
David Ganz, Associate Counsel
INTRODUCTION
The veteran had active military service in the Marine Corps
from July 1994 to July 1998.
This matter comes to the Board of Veterans' Appeals (Board)
from a March 2003 rating decision of the Department of
Veterans' Affairs (VA) Regional Office (RO) in Newark, New
Jersey, which granted service connection, effectuating a
December 2002 Board decision, for residuals of lacerated
fourth finger, right hand, with an initial disability rating
of 0 percent and an effective date of July 27, 1998.
In September 2006, the veteran testified before the
undersigned Veterans Law Judge (VLJ) at a Board hearing at
the RO. A transcript of the hearing is of record.
In May 2007, the Board remanded the present claim for a
medical examination and opinion regarding consideration for
an extra-scheduler evaluation.
FINDING OF FACT
The veteran's residuals of laceration right fourth finger are
manifested by a non-tender, non-ulcerated scar measuring
approximately 3 centimeters and some findings of limitation
of motion.
CONCLUSION OF LAW
The criteria for a compensable evaluation for residuals of a
laceration right fourth finger have not been met. 38
U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic
Code (DC) 5227 (2002); 38 C.F.R. §§ 3.321(b), 4.40, 4.45,
4.71a, DC 5230 (2007); 38 C.F.R. §4.118, DC 7801-7805 (2002
and 2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Notice and Assistance
Upon receipt of a complete or substantially complete
application, VA must notify the claimant of the information
and evidence not of record that is necessary to substantiate
a claim, which information and evidence VA will obtain, and
which information and evidence the claimant is expected to
provide. 38 U.S.C.A. § 5103(a). VA must request that the
claimant provide any evidence in the claimant's possession
that pertains to a claim. 38 C.F.R. § 3.159.
The notice requirements apply to all five elements of a
service connection claim: 1) veteran status; 2) existence of
a disability; (3) a connection between the veteran's service
and the disability; 4) degree of disability; and 5) effective
date of the disability. Dingess v. Nicholson, 19 Vet. App.
473 (2006).
The notice must be provided to a claimant before the initial
unfavorable adjudication by the RO. Pelegrini v. Principi,
18 Vet. App.112 (2004).
The notice requirements may be satisfied if any errors in the
timing or content of such notice are not prejudicial to the
claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005),
rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).
The RO provided the appellant with notice in June 2005, and
in May 2007, pursuant to Dingess v. Nicholson, 19 Vet. App.
473 (2006), both of which were subsequent to the initial
adjudication in March 2003. While these notices were not
provided prior to the initial adjudication, the claimant has
had the opportunity to submit additional argument and
evidence, and to meaningfully participate in the adjudication
process. The claim was subsequently readjudicated in October
2005, September 2006, and August 2007 supplemental statements
of the case, following the provision of notice. The veteran
has not alleged any prejudice as a result of the untimely
notification, nor has any been shown.
The notification substantially complied with the specificity
requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006)
identifying the five elements of a service connection claim;
Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying
the evidence necessary to substantiate a claim and the
relative duties of VA and the claimant to obtain evidence;
and Pelegrini v. Principi, 18 Vet. App. 112 (2004),
requesting the claimant to provide evidence in his or her
possession that pertains to the claims.
Although the letters did not specifically list the criteria
for receiving a higher rating for the finger, pursuant to
Vazquez-Flores v. Peake, No. 05-355 (U.S. Vet. App. Jan. 30,
2008), the veteran and his representative have demonstrated
actual knowledge of the evidence necessary to substantiate an
increased rating claim for the finger by the veteran's
assertions that his finger should be rated under the
diagnostic codes for the skin, and the testimony in which he
and his representative made reference to why an extra-
schedular consideration was appropriate. See Mayfield v.
Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds,
444 F.3d 1328 (Fed. Cir. 2006) (VA can demonstrate that a
notice defect is not prejudicial if it can be demonstrated...
that any defect in notice was cured by actual knowledge on
the part of the appellant that certain evidence (i.e., the
missing information or evidence needed to substantiate the
claim) was required and that the appellant should have
provided it.); see also Overton v. Nicholson, 20 Vet. App.
427 (2006).
VA has obtained service medical records, assisted the veteran
in obtaining evidence, afforded the veteran medical
examinations, obtained medical opinions as to the severity of
the disability, and afforded the veteran the opportunities to
give testimony before the Board. All known and available
records relevant to the issue on appeal have been obtained
and associated with the veteran's claims file; and the
veteran has not contended otherwise.
VA has substantially complied with the notice and assistance
requirements and the veteran is not prejudiced by a decision
on the claim at this time.
Analysis
The RO originally granted service connection for residuals of
a laceration right fourth finger in March 2003, assigning a 0
percent rating under 38 C.F.R. § 4.71a, Diagnostic Code (DC)
5230 with an effective date of July 27, 1998.
Disability ratings are determined by applying the criteria
set forth in VA's Schedule for Rating Disabilities. Ratings
are based on the average impairment of earning capacity. See
38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a
question as to which of two evaluations shall be applied, the
higher rating will be assigned if the disability picture more
nearly approximates the criteria required for that rating.
Otherwise, the lower rating will be assigned. See 38 C.F.R.
§ 4.7.
In cases where entitlement to compensation has already been
established and an increase in the disability rating is at
issue, it is the present level of disability that is of
primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58
(1994). Given that the March 2003 rating decision represents
the initial grant of service connection for residuals of a
laceration right fourth finger, however, the Board must
considered whether a "staged" rating is appropriate. See
Fenderson v. West, 12 Vet. App. 119, 126 (1999).
When all the evidence is assembled, VA is responsible for
determining whether the evidence supports the claim or is in
relative equipoise, with the veteran prevailing in either
event, or whether a preponderance of the evidence is against
a claim, in which case, the claim is denied. 38 U.S.C.A. §
5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
Limitation of motion of the fourth finger is rated under 38
C.F.R. §4.71a, DC 5230. During the pendency of this appeal,
VA issued new regulations for evaluating ankylosis or
limitation of motion of single or multiple digits of one hand
under 38 C.F.R. § 4.71a, which became effective August 26,
2002.
Under the criteria in effect prior to August 26, 2002 (the
former criteria), 38 C.F.R. § 4.71a, DC 5227 (2002) provided
that a noncompensable (0 percent) evaluation would be
assigned for ankylosis of any other finger. "Ankylosis"
means immobility and consolidation of a joint due to disease,
injury, or surgical procedure. See Dorland's Illustrated
Medical Dictionary (Dorland's) 86 (24th ed., 1994).
Under the criteria in effect since August 26, 2002 (the new
criteria), 38 C.F.R. § 4.71a, DC 5230 (2007) provides that a
noncompensable (0 percent) evaluation is assigned for any
limitation of motion for the ring or little finger.
The evaluation of a service-connected disability involving a
joint rated on limitation of motion requires adequate
consideration of functional loss due to pain under 38 C.F.R.
§ 4.40 and functional loss due to weakness, fatigability,
incoordination or pain on movement of a joint under 38 C.F.R.
§ 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995).
In this case, regardless of which criteria is used to
evaluate the veteran's service-connected disability, a
compensable rating is not warranted.
VA examinations were conducted in May 1999, July 2005, and
July 2007. The May 1999 examination notes that the veteran's
distal interphalangeal joint (DIP) of the fourth finger has a
range of motion of 0 to 30 degrees. The July 2005
examination did not report range of motion and the July 2007
examination noted a range of motion of 0 to 90 degrees at the
DIP joint and normal motor, grip, and pinch strength.
Regardless of these findings, the former rating criteria did
not provide a compensable rating for immobility and
consolidation of a joint due to injury or disease for the
fourth or ring finger, and the new rating criteria do not
provide a compensable rating for any limitation of motion of
the ring finger, no matter how severe.
The Board has considered whether an increased disability
rating is warranted for the veteran's disability based on
functional loss due to pain, weakness and flare-ups, pursuant
to 38 C.F.R. §§ 4.40 and 4.45 and the Court's holding in
DeLuca. However, in Johnston v. Brown, 10 Vet. App. 80, 85
(1997), the Court determined that if a claimant is already
receiving the maximum disability rating available based on
symptomatology that includes limitation of motion, it is not
necessary to consider whether 38 C.F.R. §§ 4.40 and 4.45 are
applicable. In this case, the veteran is receiving a
noncompensable evaluation for his disability under DC 5230
which is the maximum rating allowable. Accordingly, the
aforementioned provisions of 38 C.F.R. § 4.40 and § 4.45 are
not for consideration.
A veteran can receive compensation for both a scar and a
muscle injury that are related to the same injury. Esteban
v. Brown, 6 Vet.App. 259 (1994). As the medical evidence
shows that the veteran has a scar on his right fourth finger
from the laceration, the Board will consider whether the
veteran is entitled to compensation under 38 C.F.R. § 4.118,
DC 7801-7805.
During the pendency of this appeal, the rating criteria for
evaluating skin disorders, including scars, were amended.
These changes became effective on August 30, 2002. See 67
Fed. Reg. 49590 (July 31, 2002) (codified at 38 C.F.R. §
4.118 (2006)). The Board will also consider the pre-amended
DCs 7801, 7802, 7803, and 7804, as applicable.
Under the pre-amended criteria, a 10 percent evaluation was
warranted under DC 7804 for superficial scars that were
tender and painful on objective demonstration. A 10 percent
evaluation was also warranted under DC 7803 for superficial
scars that were poorly nourished with repeated ulceration.
All other scars were rated based on the limitation of the
part affected under DC 7805.
The current criteria for a 10 percent rating for a scar are:
a superficial scar, which is painful on examination (DC
7804); a superficial, unstable scar, that is, one where, for
any reason, there is frequent loss of covering of skin over
the scar (DC 7803); or a scar, other than on the head, face,
or neck, that is superficial and involves an area or areas of
144 square inches or greater (DC 7802). The criteria for a
10 percent rating for a deep scar or one that causes limited
motion, other than on the head, face, or neck, is a scar that
involves area or areas of 6 square inches or greater. (DC
7801). Under DC 7805, which remained unchanged under the new
version of 38 C.F.R. § 4.118, scars (not otherwise specified)
are rated based on limitation of function of the part
affected.
In May 1999 the veteran underwent a VA examination to
evaluate the severity of his disability. The examiner
reported that the veteran's right fourth finger had pinprick
sensation, was nontender, and had no edema.
A July 2005 a VA joints examination report noted that the
veteran's right fourth finger showed a 1.2 centimeter scar.
Palpitation of the scar showed decreased sensation, but no
pain. There was some adherent underlying tissue, and there
was no tissue loss. No hyper or hypopigmentation or keloid
inflammation was noted.
A VA scars examination was also conducted in July 2005. The
examiner reported that the veteran has a one inch linear scar
on his right fourth finger. There was no pain of the scar on
examination. There was no adherence to underlying tissue.
The scar was stable, 1 to 2 millimeters wide, and
superficial; there was no sign of inflammation, edema, or
keloid formation.
In July 2007 another VA examination was conducted to
determine whether the veteran's disability affected his
ability to perform his job. The examiner reported that the
veteran had a three centimeter scar on the fourth digit of
his right hand. In some areas it is superficial, and in some
it is deeper. Likewise, in some areas it was fixed and in
other areas it was not. Sensation was decreased to light
touch over the area of the scar. No pain was noted with deep
palpitation over the area. The scar was stable and healed
well. Range of motion of the DIP and proximal
interphalangeal joint (PIP) was flexion to 90 degrees and
extension to 0 degrees. Motor, grip, and pinch strength were
all 5/5. No additional loss of joint function due to pain,
fatigue, or lack of coordination, was noted after repetitive
motion. The examiner opined that the veteran's current
disability did not interfere with his job duties, including
his ability to use a firearm, and that there should be no
limitations or restrictions at this time.
In light of the evidence of record, namely that the veteran's
scar had no pain on objective demonstration or examination;
lack of a finding that it is poorly nourished with repeated
ulceration or frequently lost covering of skin; and that it
involves an area less than 6 square inches; the veteran's
residuals of laceration right fourth finger disability does
not warrant a compensable rating under the scar rating
criteria. 38 C.F.R., § 4.118, DCs 7801, 7802, 7803, 7804
(old and current).
At no time since the effective date of service connection,
July 27, 1998, has the veteran's disability met or nearly
approximated the criteria for a compensable disability
rating, and staged ratings are not for application. See
Fenderson, supra.
The veteran testified that his disability impedes his ability
to function in his job, particularly in his ability to grip,
and qualify with, his service weapon. However, the evidence
does not support a finding that his service-connected
disability results in marked interference with employment or
frequent periods of hospitalization as to render
impracticable the application of the regular scheduler
standards. See 38 C.F.R. § 3.321(b) [extraschedular rating
criteria].
There is evidence of record that indicates that the veteran
has a decreased range of motion in the DIP joint of his
finger, however, during the veteran's July 2007 examination,
after finding that the veteran had 0 to 90 degrees of flexion
in his DIP and PIP joints, the examiner specifically found
that the veteran's service-connected disability did not
interfere with his job duties, including his ability to use a
firearm.
The preponderance of the evidence is against an initial
compensable evaluation; there is no doubt to be resolved; and
a higher initial rating is not warranted. Gilbert v.
Derwinski, 1 Vet. App. at 57-58.
ORDER
Entitlement to an initial compensable rating for residuals of
laceration right fourth finger is denied.
____________________________________________
RONALD W. SCHOLZ
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs